Irfana v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 382
•29 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Irfana v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 382
File number(s): MLG 1665 of 2017 Judgment of: JUDGE FORBES Date of judgment: 29 November 2021 Catchwords: MIGRATION – Ex tempore ruling – application for judicial review of AAT decision – delegate refusal to grant the first applicant a Student (Temporary) (Class TU) Subclass 572 visa – first applicant’s fourth student visa application – enrolment in numerous courses – no genuine desire to study – prompt oral decision by Tribunal followed by written reasons not bias – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), cl.527.223(1)(a)Cases cited: Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123Division: Division 2 General Federal Law Number of paragraphs: 47 Date of last submission/s: 29 November 2021 Date of hearing: 29 November 2021 Place: Melbourne First, Third and Fourth Applicants: The First Applicant in person and as litigation guardian for the Third and Fourth Applicants Second Applicant: In Person Counsel for the First Respondent: Mr Hibbard Solicitor for the Respondents: The Australian Government Solicitor ORDERS
MLG 1665 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ASRA IRFANA
First Applicant
MOHAMMED OSMAN ALI
Second Applicant
ADNAN AHMED ALI MOHAMMED (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
29 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The Application filed 1 August 2017 be dismissed.
2.The Applicants’ pay the First Respondent’s costs fixed in the sum of $7,853.
3.The time for any appeal against this decision commences from the date of publication of the Court’s written reasons.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
The applicants in this case seek a review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 11 July 2017. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the first applicant a student temporary vocational education and training sector subclass 572 visa. I have been able to extract the relevant background from the documents in the court book and the submissions filed on behalf of the Minister, and I have taken into account the oral submissions that each of the parties have made today.
The first applicant, Ms Irfana, is an Indian citizen. She first arrived in Australia on
12 November 2008 as the holder of a Student (subclass) 573 visa. Since the first applicant’s original arrival onshore, she has been granted two further subclass 572 visas, and also
a subclass 485 skilled visa.
DELEGATE’S DECISION
On 6 March 2015, Ms Irfana applied for a subclass 572 visa, and that is the subject of this particular hearing today. A migration agent assisted with that application. The applicant’s husband and their two children are secondary applicants for the purposes of this application.
On 11 March 2015, the delegate forwarded an email to the migration agent, inviting Ms Irfana to comment on her circumstances and to provide documentary evidence.
On 7 April 2015, Ms Irfana provided the delegate with a “GTE Letter” which outlined her reasons for choosing to undertake the courses of study which were specified in her application. That letter can be found at court book pages 85 to 88. I also noted today that Ms Irfana directed me to page 35 of the court book which set out her statement of purpose at the time. On that occasion, Ms Irfana also provided documentation of funds for support and also her overseas student health cover.
The delegate of the Minister refused to grant the visa on 26 June 2015. The visa was refused on the basis that the Minister did not believe that the first applicant intended to genuinely stay in Australia temporarily. The delegate found that the first applicant was using the student visa program to circumvent the permanent migration programs. The delegate concluded that the first applicant did not satisfy the genuine temporary entrant requirements contained in
cl 572.223(1)(a) of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”).
TRIBUNAL DECISION
On 8 July 2015, Ms Irfana applied to the Tribunal for a merits review of the delegate’s decision and she engaged a representative to represent her and her family before the Tribunal.
The Tribunal, on 9 June 2016, acknowledged the first applicant’s application.
On 19 June 2017, the Tribunal sent the first applicant’s representative an invitation to attend
a hearing. In the invitation to attend the hearing, the Tribunal also requested Ms Irfana
to provide any additional documents or information by 4 July 2017. Two days later, on 6 July 2017, an email was sent to the Tribunal by Ms Irfana’s representative which included
a response to the hearing invitation. It also included the GTE statement, certificates
of enrolment for two courses, units that were covered to date, and an additional statement from Ms Irfana.
The hearing took place before the Tribunal on 11 July 2017. Ms Irfana and her husband attended the hearing and gave evidence and presented arguments. At the conclusion of the hearing, the Tribunal made an oral decision that it would dismiss the application. The Tribunal’s decision and reasons were provided in written form in an email about two weeks later on 25 July 2017.
In its decision, the Tribunal noted that Ms Irfana was currently enrolled in a Certificate III and Certificate IV Commercial Cookery course – and that those courses were scheduled to run until April 2018. The Tribunal also noted that this was the first applicant’s fourth student visa application since coming to Australia in 2008. The Tribunal also noted that, even though
Ms Irfana had arrived on a subclass 573 visa, she had never studied at that higher education level.
The Tribunal recorded that Ms Irfana’s most recent visa, which was the subclass 485 visa, was granted to enable her to work and gain experience in the field of study as a community welfare worker. But the Tribunal went on to note that she had not performed any work in that field.
The Tribunal also found that Ms Irfana did not do any study during the period of her most recent visa, but that when it was due to expire, she applied to do further study and applied for the 572. What the Tribunal found, based on that evidence, was that the application for the visa was, in effect, an application to remain in Australia, rather than a genuine desire to study.
The Tribunal also found that Ms Irfana had enrolled in a number of unrelated courses in various disciplines and that the courses were relatively short and inexpensive. The Tribunal also found that she was enrolled in many of the courses on multiple occasions and a number had been cancelled.
The Tribunal’s finding was that after almost nine years since arriving in Australia, the first applicant had satisfactorily completed less than two years of study. The Tribunal was of the opinion that that was not analogous to the progress of a genuine student.
The Tribunal also considered Ms Irfana’s incentive to remain or return, and it acknowledged that she has family in India but appears to be settled in Australia with her husband and two children. Further circumstances were also taken into account by the Tribunal, including that Ms Irfana’s husband has been employed with the same firm in Australia for a number of years, and the Tribunal believed that this provided a significant incentive to stay in Australia.
The Tribunal ultimately affirmed the delegate’s decision and it did so because the Tribunal was not satisfied that the first applicant was a genuine student who intended to temporarily stay
in Australia. By reason of that she failed to meet cl 572.223(1)(a).
APPLICATION FOR REVIEW
On 1 August 2017, the applicants applied for a review of the Tribunal’s decision.
The application that has been filed identifies two grounds of review.
The first ground contends that the member of the Tribunal erred in law and fell into jurisdictional error by failing to properly consider the evidence before them. There are some particulars given to that which I will come to in a moment, but the first ground, as I apprehend it, is that the Tribunal erred because it did not properly consider the evidence it had before it.
The second ground contends that the member of the Tribunal erred and fell into jurisdictional error when they incorrectly applied the guidelines laid down by Ministerial Direction 53.
The grounds of the review are supported by a brief affidavit from Ms Irfana, and that affidavit is in similar terms to what is contained in the application.
On 4 April 2018, orders were made for the preparation of this matter for this hearing, and on that occasion the Minister was directed to file a court book, and both parties were invited
to file written submissions in support of their case.
I indicate for the record that the Minister has filed a court book in accordance with those orders and also an outline of submissions on 15 November 2021. The applicants have not filed any amended application, any further court book or any further written submissions. The only material that I have before me in relation to this application is Ms Irfana’s initiating application and her affidavit and, of course, the materials in the court book filed by the Minister.
At the hearing today – Ms Irfana was self-represented. Her husband is also present, and she represented her children as litigation guardian. Mr Hibbard appeared on behalf of the Minister.
In support of her application today, Ms Irfana submitted that the decision made by the Tribunal was wrong, principally because the Tribunal failed to consider her intentions regarding her study.
She said that her cookery course was to be undertaken to enable her to commence a business back in India, and in that regard Ms Irfana directed me to page 35 of the court book, which sets out a statement of her purpose at the time her visa application was made. I note in that statement of purpose she explains her choice to study further in Australia, and why she has decided
to study a certificate III and IV in cookery.
The first applicant also submitted that the Tribunal was biased because she perceived that the Tribunal had already made up its mind. She submitted that bias can be inferred from the fact that the Tribunal made a decision straight away, and did not issue written reasons for some time after that. She said that there was no evidence against her intention to return, that she always maintained an intention to return back to India and that the Tribunal did not properly take that into account.
Mr Hibbard, on behalf of the Minister, relied upon his written submissions, which I indicated I had read prior to the hearing. In brief, Mr Hibbard’s submission was that it is apparent from the face of the Tribunal’s decision that the Tribunal had taken into account Ministerial Direction 53 and that the Tribunal had specifically referred to the courses that Ms Irfana was enrolled in.
He said that in the course of the Tribunal’s decision it is clear that the Tribunal had taken into account Ms Irfana’s previous study and courses and also her previous visa history, and that the Tribunal had specifically noted that this application was for a fourth student visa. Mr Hibbard submitted that it is the Tribunal’s role to weigh up all the various factors in satisfying itself whether to grant a student (subclass) 572 visa. He also said that the Tribunal had properly considered the Ministerial Direction number 53, and he said, again, that that is apparent on the face of the decision.
Mr Hibbard pointed out, correctly, that the ministerial direction does not set out a checklist
of everything that has to be taken into account, and that ultimately it is a matter for the Tribunal to weigh up all of the relevant circumstances relating to the visa application. Mr Hibbard also pointed to paragraphs 26 to 27 of the decision, which show that the Tribunal did, in fact, weigh up all of the relevant circumstances.
Mr Hibbard also addressed the question of bias, or the allegation of bias. He said that the Tribunal had made a decision straight away, but that is a mechanism contemplated by the Migration Act that is, for a decision to be made quickly and for written reasons to follow later. He submitted that the quickness of the oral decision was not sufficient of itself to evidence bias or any error.
Ms Irfana was given an opportunity to reply to those submissions, and she explained to me that her circumstances at the time had been changing. She submitted that her changed circumstances were one of the reasons why she had enrolled in so many courses. She also explained circumstances around the birth of a child which prevented study and required her
to return to India at the time. Importantly, Ms Irfana agreed that she had previously explained these matters to the Tribunal.
CONSIDERATION
I have had careful regard to the written submissions and what has been advanced to me today. For the following reasons, I find that the decision of the Tribunal is not affected by error and that the application should be dismissed.
As I mentioned the first applicant relies on two grounds and both of those grounds allege failures on the part of the Tribunal to carry out its function in relation to the application.
The first ground, is that the Tribunal did not properly consider the evidence before it. Ms Irfana says that the Tribunal summarily dismissed and discounted her evidence that she was a genuine student, that the Tribunal failed to consider the evidence in totality and cumulatively, and that the Tribunal failed to properly investigate her claim as to her immediate study plans and her desire to return to India. All of those are effectively an attack on the Tribunal’s task
of considering the evidence before it. The second ground is that the Minister failed to apply Ministerial Direction number 53. Neither of those grounds have been made out for reasons
I will explain.
The key criterion or the compulsory criterion for the grant of a student (subclass) 572 visa
is that the Minister must be satisfied that the applicant intends genuinely to stay in Australia temporarily. The task of reaching that satisfaction requires the Minister to have regard to four main matters under cl 572.223(1)(a). The four are: the applicant’s circumstances; the applicant’s immigration history; if the applicant is a minor, the intentions of the parent or legal guardian; and importantly, any other matter. The Tribunal is also required to comply with Ministerial Direction 53 in assessing those criteria and sets out various factors which have
to be taken into account in assessing the genuine temporary entrant criteria.
In the Minister’s written submissions, the Court was directed to a decision of the Full Court
of the Federal Court in Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646. In Kumar, the Full Court explained that, in complying with Ministerial Direction 53, the Tribunal has to turn its attention to and actively engage in each of the factors, but there is no requirement for each and every factor to be referred to in the Tribunal’s reasons. So to put it in simple terms, the obligation of the Tribunal is to consider and turn its mind to the various claims that the first applicant raises, but importantly, the weight to be given to each
of those factors is a matter for the Tribunal.
In this case, I am satisfied that the Tribunal did appropriately consider the matters it was required to consider and therefore it discharged its statutory function. I agree with the Minister that the Tribunal considered each of the first applicant’s claims and did reach a conclusion about them within the context of cl 572.223(1)(a) and Ministerial Direction 53. In the Minister’s written submission and again today, Mr Hibbard pointed to a large number
of paragraphs of the Tribunal’s decision which show that it had clearly read, and clearly considered the applicant’s GTE statement, and the other materials in the court book. I am satisfied, when the decision is read fairly and as a whole, that the Tribunal has turned its mind to those matters and has deliberated on those matters.
I can understand, if any particular matter has not received a mention in the decision, that one might infer that it has been overlooked. But that is not an inference that the Court should rush to. If the Tribunal has given what is otherwise a comprehensive decision and shown the matters that it has considered, then it is unnecessary to make a finding about each and every matter that has been raised. Importantly, and again the Minister points to Kumar in this respect, if an applicant argues that there has been a failure to refer to a particular matter and that that has given rise to some error in the decision, the applicant bears the onus of satisfying the court about that.
The applicant has complained that the Tribunal failed to consider the evidence in totality and cumulatively. It is implicit in that complaint that the Tribunal did not take everything into account and weight it up. My view is that the Tribunal’s record of decision goes the other way and shows that it has.
I also acknowledge the argument that the Tribunal member gave an oral decision, which was some time later followed by a written statement of reasons and I can understand why, in the circumstances, that might give rise to a concern that matters have not been fully taken into account. However, the quickness of the decision should not alone give rise to an inference that the Tribunal has not done its job and, indeed, it does not reveal jurisdictional error. The Migration Act 1958 (Cth) (“the Act”) actually contemplates specifically the Tribunal members may give an oral decision with written decisions to follow. I do not see any error in that process.
At paragraph 32 of the decision, the Tribunal really does make it clear that it considered the applicant’s circumstances as a whole, and the Tribunal has accepted certain aspects of the evidence and has rejected other parts of the evidence. It has weighed different considerations for and against, and it has ultimately concluded that the applicant’s circumstances, when taken together, did not indicate that she was a genuine temporary entrant.
It is important to emphasise, lest there be any misunderstanding, that the weight that is given to various criteria and the weight that is given to the evidence is a matter entirely for the Tribunal. It is not for me to reweigh those things or to reassess the merits of the application. My task in this Court is to ensure that the Tribunal discharged its statutory function.
It has also been alleged that the Tribunal did not properly investigate Ms Irfana’s claims. Referring to a decision of the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at [25-[26], the Minister conceded in his submissions that the Tribunal could fall into error if it does not make an obvious inquiry about a critical fact, the existence
of which could be easily ascertained. But that is not the situation here. The Tribunal’s reasons refer that the first applicant gave information about her study plans and paragraph 24 of the Tribunal’s record shows that it was aware the applicant wished to study two more courses.
The Tribunal’s reasons also disclose that the first applicant stated her intention to return home to India to open an aged care business. So it was aware of that, and it took that into account, and that is obvious from the fact that the Tribunal also noted the applicant had chosen to study for qualifications in aged care and had not provided reasons for doing so. So I am satisfied that the Tribunal did assess the factors it had to consider. It seems to me clear, from paragraphs 30 and 31 of the decision, that the Tribunal did so when it found that the applicant’s words and her actions were different.
CONCLUSION
My conclusion is that ground 1 fails and ground 2 also fails. There is no jurisdictional error
in the Tribunal’s decision, and for those reasons, the application will be dismissed. It also follows that the primary application being dismissed means that each of the second to fourth applicants do not meet the dependent criteria.
I will order that the applicants pay the first respondent’s costs, which will be fixed at $7,853. I will also order that the time for any appeal against this decision will commence from the publication of these ex tempore reasons.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 19 January 2022
SCHEDULE OF PARTIES
MLG 1665 of 2017 Fourth Applicant
ABRAR AHMED ALI MOHAMMED
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